This civil revision has arisen out of a suit for pre-emption brought by the respondent, Zaheer Ahmad, against the petitioners, Ghulam Rasool and others. Land involved in the suit was sold by one Zahoor Ahmad in favour of the petitioners. It was alleged by the respondent that he was a son of the vendor and had, therefore, a superior right of pre-emption. Suit was resisted by the petitioners contending that they cultivated the land in question as tenants at the time of its sale in their favour and had, therefore, the first right of pre-emption. It was also urged by them that they had taken possession of the disputed land before the sale-deed in respect thereof was executed in their favour and thus the suit was time-barred with reference to the date on which the possession was delivered by them. Issues framed by the trial Court included an issue relating to limitation but it was not decided by the said learned Court because it was not pressed by the petitioners. Issue in respect of the right of pre-emtpion was answered in favour of the respondent. Resultantly, his suit was decreed. Petitioners went in appeal before an Additional District Judge but without success.
They have, therefore, come up in revision to this Court.
2. It was contended by learned counsel for the petitioners that the petitioners had produced copies of Khasra Girdawaris, Exhs. D.2 to D.6, showing that they cultivated the disputed land as tenants at the time of its sale in their favour but even then issue relating to right of pre-emption was decided against them.
3. Learned lower Courts have given cogent reasons for not relying on the said copies of Khasra Girdawaris. For intance, in Exhs. D.2 and D.3 all the petitioners are recorded as tenants but in Exh. D.4 only Muhammad Aslam petitioner has been shown as a tenant and that too of Ghulam Rasul petitioner. Petitioners Nos. 5 and 6 are minors. It was pointed out by the learned lower Courts that in view of their minority they could not be expected to cultivate the disputed land as tenants. The said learned Courts also doubted cultivation by, the other petitioners for the reason of their absence from the place where the disputed land is situate. In this connection, it was stated by Yasin (D.W.3), Inayat Masih (D.W.4) and Ghulam Muhammad (D.W.5) that the petitioners, other than the minor ones, resided in Sargodha City and carried on business there but the disputed land lies in Chak 34 Shamali, Tehsil and District Sargodha. The guardian ad htem of the minor petitioners (defendants), Ghulam Muhammad, entered the witness-box as D.W.5. He said that agreement to sell the land in question was executed in 1976 and that the petitioners' got possession of the disputed land under that agreement. The sale-deed in favour of the petitioners was executed in 1983. Thus, according to the statement of Ghulam Muhammad the petitioners were in possession of the disputed land in pursuance of the agreement to sell and not as tenants. Yasin ~D.W.3) appeared as a witness of the petitioners but did not say that the petitioners cultivated the land in dispute in pursuance of the said agreement. Inayat Masih (D.W.4) made statement m this behalf but he did not clarify that they tilled the disputed land at the time of its sale in their favour. It was denied by the respondent that the petitioners cultivated the land in question as tenants at the time of its sale in their favour.
His plea finds support from the statement of Zahoor Ahmad (P.W.1), Rehmat Ali (P.W.2) and Zaheer Ahmad (P.W.3) who appeared as his witnesses. As indicated above, the petitioners' averment regarding tenancy stands contradicted by their own plea to the effect that they got possession of the disputed land as owners before the execution of the sale-deed in their favour. This is obvious from paragraph 1 of their written statement. In the circumstances, the learned lower Courts are not to blame for not relying on the said copies of the Khasra Girdawaris while deciding issue relating to the right of pre-emption.
4. As regards the issue of limitation, it was argued by learned counsel for the petitioners that learned appellate Court was duty bound to decide that issue even if it was not pressed by the petitioners before the learned trial Court. He, therefore, wanted me to decide the said issue or remand the case to the learned appellate Court for fresh decision. In this connection, he placed reliance on Ram Charitter Misir v. Siraj Teli I L R 1931 53 All. 738. On the other hand, it was contended by learned counsel for the respondent that since the issue of limitation was abandoned by the petitioners they cannot ask for its decision by this Court.
5. In the case of Ram Charitter Misir, relied upon by learned counsel for the petitioners, it was held that plea of limitation can be decided by a higher forum if there is no complication as regards the facts on which this plea is based e.g, when it rests on facts admitted by the plaintiff himself. In the instant case, it was not admitted by the respondent that the petitioners, took possession of the land in question, under the sale in dispute, before the registration of the relevant sale-deed. Thus, there was controversy between the parties regarding the date of possession of the petitioners and the capacity in which the possession was taken by them. No finding in this regard was recorded by either of the learned lower Courts as the issue of limitation was not pressed by the petitioners before the learned trial Court. While making statement to this effect, the petitioners, in a way, asked the learned trial Court not to decide the said issue. They cannot, therefore, now turn about and ask this Court to give finding thereon. It may also be pointed out that in the cited case question of limitation was raised and argued before the trial Court but this was not done in the instant case.
The case of Ram Charitter Misir, therefore, being distinguishable is of no help to the petitioners.
6. Question of limitation in this case is not a pure question of law. It is al mixed question of law and fact and cannot be decided without determining the factual position. By not pressing the question before the learned trial Court, the petitioners opted not to have a finding thereon. They cannot, therefore, now be permitted to ask for a decision thereon by this Court.
7. Even if the view taken is that the learned appellate Court was bound to decide the issue of limitation, it will be of little avail to the petitioners because they have a very poor case in this behalf.
They took contradictory stands with regard to the nature of their possession. In their written statement, at one place it was pleaded by the petitioners that they got possession of the disputed land under the agreement to sell, which was entered into is 1975, but at another place it was stated by them that they remained in possession of the disputed land as tenants.
Strangely enough, it was also added by them that they continued to be tenants of the said land even upto the time of filing the written statement although by then the sale in question had been made in their favour.
8. Reference has already been made to the inconsistent positions taken by the petitioners at the stage of evidence. As explained above, some of their evidence is to the effect that they occupied the land as tenants while it was stated by one of their witnesses, namely, Ghulam Muhammad, guardian aditemof the minor petitioners, that they got possession of the disputed land in 1976, under the agreement to sell which was entered into in 1975. His statement is contrary to the pleadings of the petitioners inasmuch as in the written statement it was stated that possession under the agreement to sell was delivered to them in 1975 (and not in 1976 as stated by Ghulam Muhammad). Petitioners' evidence with regard to their possession prior to the execution of the registered sale-deed in their favour also stands rebutted by the evidence of the respondent. It was stated by Zahoor Ahmad (P.W.1) and Zaheer Ahmad (P.W.3) that the petitioners did not take possession of the disputed land in 1976, i.e., before the execution of the registered sale-deed. In the circumstances, I am not inclined to believe that the G petitioners got possession of the disputed land before the petitioners got possession of the disputed land before the execution of registered sale-deed in[ their favour.
9. Sale pre-empted by the respondent is recorded in the registered sale- deed, Exh. P.1, dated the 13th January, 1983. Admittedly, his suit was within time with reference to the above date. His suit would have been time-barred if the petitioners had been able to establish that the sale had taken place before the said date and they had also taken physical possession of the land under that sale prior, to the above date. There is, however, no evidence in this regard. For reasons already given, evidence of their possession under the agreement to sell does not D inspire confidence. Even if that evidence is relied upon, it will be of no use to the petitioners because possession in pursuance of the agreement to sell cannot be treated as possession under the sale.
10. In result, I hold that the petitioners have failed to show that sale of the I disputed land had been made in their favour before the execution of the registered sale-deed and that they had taken possession of the said land under such sale prior to the execution of the sale-deed. Issue of limitation is, accordingly, decided against the petitioners.
11. There is no merit in this civil revision. It is, therefore, dismissed with costs.